Dickie v. Campbell et al.

THE CHIEF JUSTICE :-By section 17 of chap. 95 R. S. N. S. 1900, it is enacted that :

Persons engaged in the floating and transmission of saw-logs and timber of every kind, down rivers, lakes, creeks and streams, shall be entitled to have the reasonable use of and access to the banks of such rivers, creeks and streams, during such floating or transmission, and for the purpose of enabling such saw-logs and timber to be floated or transmitted, and shall also have the right to enter into and upon the banks of, and lands adjoining such rivers, streams or creeks for the purpose of taking therefrom any saw-logs or timber that have come upon such banks and lands during such floating or transmission, and they shall not be liable for any but actual damages done by the floating transmission or removal of such saw-logs and timber, nor for any discolouration or impurity of the water caused by the floating or transmission of such saw-logs or timber, unless the same is caused by their wilful act.

This action was brought by the respondents to recover damages from the appellant for damages caused to their lands, as they allege, in consequence of the appellant's doings in floating up and down the Stewiacke river logs belonging to the said appellant, and for damages done to respondents' lands by the removal of sid logs.

The case was tried by Mr. Justice Townshend with a jury.

The learned trial judge submitte~d certain questions to them, which they answered as follows:

If they did, what damages have plaintiffs suffered in consequence ? I..

Ans. $100.

Did defendant use reasonable care in having his logs brought The Chief down the river to prevent them causing injury to plaintiffs' lands on Justice, the river bank ?

Ans. No.

Ans. No.

Ans. No.

(1.) In the month of April ?

Ans. $15.

(2.) In the month of May ?

Ans. $20.

(3.) In years previous to 1900 ?

Ans. No damages proven.

Upon these findings judgment was subsequently entered in favour of the respondents for $135.

The appellant moved the court in banco to set aside the findings of the jury and for a new trial, but his motion was disallowed.

Hence the present appeal.

The first ground of the appellant's motion is on an alleged misdirection in the learned trial judge's charge to the jury. We disposed of that objection instanter at the hearing. It is based on a supposed charge by the learned judge, which he later reported to the full court not to have been made, sending at the same time the correct report of his charge. Now we do not see anything objectionable in this, as it appears on the record. Then this is a matter entirely within the province of the court appealed from, which cannot be reviewed by this court.

Another ground taken by the appellant is that damages were awarded against him for a period of five years and that during some portion of that time the conveyance and floating of these logs was not done by him but by contractors. That contention is, under the circumstances of this case. unfounded.

There are no doubt cases whereby it is held, and we may assume it to be the law as a general rule, that when any one employs an independent contractor to do a lawful work he is not responsible for damages caused by the collateral negligence of the contractor. But there is no question of negligence in this case. The statute imposes upon the appellant the liability to all the damages that follow his exercise of the right thereby given to him whether he exercised all the care and diligence possible to avoid such damages not. He, it is in evidence, was aware of the risk that attended his operations, and was under the law bound to see that proper means were taken to prevent injurious consequences thereof, and could not discharge himself of that liability upon the shoulders of his contractors. It cannot be that any one who intends to carry on operations which, though lawful, are of a nature to cause damages for which the law makes him liable, could have it in his power to get rid of the risks of such damages and of his liability therefor by simply having the operations put into execution by a contractor.

_!There are a number of cases cited in the respondents' factum on this point to which I need not refer in detail.

The following may be added to them: Maxwell v. British Thompson Houston Co. (1) ; Hill v. Tottenham Urban Dist. Coun. ; Holliday v. The National Telephone Co. (3); The Snark (4).

As to the ground of excess of damages, I do not believe it has been seriously taken. The jury under